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Saturday, August 13, 2005

Ninth Circuit: “Social Constraint” = “Persecution”

On Friday, a panel of the U.S. Court of Appeals for Ninth Circuit issued a decision that was bewildering and breathtaking even for it -- the most-often reversed Circuit Court of Appeal in the nation.

A unanimous three-judge panel (deciding even that oral argument in the case was an unnecessary waste of time), ruled that Jose-Pratico Boer-Sedano, a gay Mexican national was eligible for asylum in the United States because he would “face significant social and cultural constraints as a gay man with AIDS in Mexico.” A link to the opinion is here.

Both legally and factually the case is astonishing.

In asylum cases the court is obliged to focus upon whether those requesting sanctuary in the United States face “persecution” in their home country -- not, “social and cultural constraints.” By blurring this distinction, the court’s ruling seems to really lower the bar on asylum petitions.

The facts of the Boer-Sedano case, and the conclusions the Ninth Circuit draws from the facts, are likewise stunning.

The Court ruled that because Mr. Boer-Sedano claimed that he was assaulted by a police officer in his rural hometown on the Eastern Coast of Mexico, that he was entitled to the presumption that the threat of persecution for his sexual orientation covered the entire country of Mexico. The Court was apparently unmoved by the fact that Mr. Boer-Sedano lived for a year without incident in the larger city of Monterrey -- some 300 miles away from the coastal town of his birth -- or that following his entry to the United States, Boer-Sedano returned from time to time to Mexico, also without incident.

Finally, in reaching the conclusion that “social and cultural constraints” equal “persecution” under the asylum laws, the panel relies upon a report of the International Gay and Lesbian Human Rights Commission. While this organization has an awfully official sounding name, the Commission is, in fact, a New York-based advocacy group that urges “progressive changes in laws, policies and practices by states.”